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June 26, 2012

Why Business People Should Care About Passing the Magnitsky Bill -- With a Public List

If you're in Washington, DC today, don't miss the premiere showing of “The Magnitsky Files” --Organized Crime Inside the Russian Government -- a new short film telling the story of a $230 million corruption case in Russia involving senior Russian officials which led to the death in detention of a whistle-blower, Sergei Magnitsky.

The movie will be followed by a discussion with Senator John McCain, David Kramer, President of Freedom House, and William Browder, head of the global campaign for justice for Sergei Magnitsky.

I'm finding this totally bogus as I can't imagine what the national security concern would be about exposing high Russian officials involved in serious human rights abuse. Our tete-a-tetes with them will end once we expose them? But that's ok, Russia is not our friend, Russian generals have called for bombing anti-missile installations in Europe if the US deploys them as a shield against Iran -- Russia's protected ally.

It will lead to a new Cold War? Well, cold is what you need to be when you dealing with the level of corruption, crime, and massive human rights abuses that we're dealing with today in Russia. Containment is the watchword. That doesn't mean you stop negotiating with the Russians, but you cease this locked embrace called the "reset" that isn't leading anywhere. "Offset" should be the new policy. Damage control.

What is this really about? Some official we "need" for something (an SOB but our SOB?) in the list? Need for what? Again, Iran? Syria? Russia isn't really cooperating on any of these issues, so it makes no sense.

Very reluctantly, I would say that if the only way the Magnitsky Bill could be passed, in order to put the sanctions in place, is to hide this list, then I suppose it should be passed. The alternative is to stall on it and have its momentum dissipated further while Jackson-Vanik *must* be ruled to cease applying to Russia because that is indeed the law, and there would be adverse consequences for the US after Russia joins the WTO. (These may be exaggerated and I'm happy to hear argumentation about this, but that's how it looks from here.)

But I think senators should struggle to eliminate this crippling clause hiding the list because it doesn't come from a good place. It comes from some senators wishing to protect Obama's desire to keep resetting with the Russians, not from any real need.

In fact, if it turns out this is once again a stalling/diversion tactic from Sen. Kerry, who aspires to be Secretary of State, I would find yet another reason to vote for Romney, and not Obama. As I keep telling all my excessively "progressive" interlocutors: win the cultural wars, lose the elections. This is a cultural war.

Yesterday, I gave an interview to Radio Liberty about the issues surrounding the bill.

First of all, I don't see any problem with having a bill focused just on Russia. The Congress passes country-specific legislation all the time. There's the North Korea Human Rights Act or the Belarus Democracy Act. Severe cases of human rights violations require country-specific legislation and there's a long tradition of this -- Jackson-Vanik itself is of course precisely such a piece of legislation aimed at the Soviet Union and its allies that barred emigration and were non-market economies.

The goal is not to "repeal" or "end" or "abolish" the Jackson-Vanik and that is not what is happening. It will be formally acknowledged as ceasing to apply to Russia, as Russia has graduated from it. The bill remains intact for use against countries that have non-market economies like Turkmenistan or North Korea that bar freedom of movement.

I'm for passing the Magnitsky bill with or without the internationalizing language, whatever works. It's good to have a nod to universality and the need to apply universal standards in any bill, sure. The US should work to end impunity for killings anywhere, in Mexico or Pakistan or Saudi Arabia, but just because they can't do it everywhere due to political exigencies doesn't mean they shouldn't do it somewhere. The US has other human rights legislation, such as laws barring aid to countries with forced labor or trafficking of persons, although we handily waive their application for strategically important allies like Uzbekistan, as we just did this month. Even so, the legislation, the reporting, the standards are there.

The main argument against Magnitsky has been that it usurps the functioning of the executive branch.

Given how badly this administration has handled relations with Russia with this ill-conceived reset and dubious operations like the hybrid US-Russian Commission, I think balancing by the Magnitsky act is in order. Government is, after all, about checks and balances. Forceful moral stances are important to take in foreign relations, when you can. And I don't see that Magnitsky actually interferes with foreign-policy making as the Obama Administration (McFaul) will go right on doing exactly what they were doing before Magnitsky was passed, and with as little or no success. The Russians will be let in the WTO because Jackson-Vanik will have been ruled no longer to apply, and that's all they care about. Sure, they are kicking and screaming about Magnitsky, but that's how they are. Meanwhile, at least some officials can't come over here and buy ranches in Virginia.

There isn't some hard and fast rule that Congress shall "never" make sanctions on foreign countries. Congress passed sanctions on Iran, for example, and had sanctions against apartheid South Africa back in the day. Those realities are never admitted by those at State complaining about usurpation. And Magnitsky isn't sanctions against an entire country, but just a list of officials involved in human rights violations. What could be more targeted?

The problem with leaving the "Magnitsky List" in the hands of State is that they will not publicize the names, and the public can't know then whether they are in fact violating their own sanctions regime or whether they've included everyone who needs to be on there. And incorporation this feature of the Administration's take on Magnitsky now into the bill is really mischievious, and just as wrong.

I worry about this when I see the Melia-Dolgov Commission (as the McFaul-Surkov Commission is now known) meeting with the Russian Minister of Justice in something called the "rule of law" commission created to discuss legal issues. Why are we meeting with the Minister of Justice when heads are being cracked at peaceful demonstrations in Moscow? Why are we meeting with the Minister of Justice -- at that level -- when the Magnitsky case isn't resolved, nor the cases of Khodorkovsky and Lebedev and others? Sure, there may be legal matters we need to meet with the Russians about, say, the contentious foreign adoptions issue. Then we can meet with a second assistant to a third secretary or something, it doesn't have to be the Minister of Justice himself -- which reifies him as somehow an avatar of the rule of law -- which he isn't.

A blogger in Moscow recently put it very succinctly: "The Magnitsky List is now ruling the country". What he meant by this somewhat literary statement is that the people responsible at the top particularly for the death of Magnitsky in detention are now ruling the country in Putin's new reign, and are responsible as well for the current crackdown on demonstrators. And there's something to be said for the truth of that statement. The Magnitsky List will keep ruling the country if it remains a secret list left to State's discretion or incorporated into the bill for State to manage. (And if it must be passed with that killer clause, let's hope those opposed start chipping away at that immediately the next day.)

The Magnitsky bill also contains language about ending impunity for the human rights crimes presided over by Ramzan Kadyrov, leader of Chechnya. And I'm not sure State would keep that part of the list on their foreign-policy agenda, due to its undoubtable irritant factor in relations with the Kremlin.

Letting Russia into the WTO and ending any lingering trade sanctions against Russia imply that it is now ready, 20 years after the collapse of the Soviet Union, to be a responsible and accountable trade partner.

But the Magnitsky, Khodorkovsky and other cases let us know that it most certainly is not -- the Magnitsky List goes to the very heart of the impunity of Kremlin-sponsored corruption that must end if Russia in fact is ever to become a reliable business partner. That's why it has to be a PUBLIC list -- glasnost is the best weapon against corruption and lawlessness.

This is a case that is very much at the nexus of human rights and business in a way that people in business often like to dismiss, even as they make claims for business that it will be a democracy-inducing tide that will lift all human rights boats as long as they don't have a sanctions approach.

That has never been shown to be the case with the Soviet Union or the post-Soviet countries or even China. The incremental improvements in some human rights aren't enough to justify a human-rights astigmatism and agnosticism for business. Instead, people interested in doing business with Russia should be four-square for passing a bill that makes sure that not only someone else's lawyer or somebody else's CEO is safe from death or torture and prolonged detention, but their own.